Recurring Reports

2015

Other Budget Issues

Last Updated:

5/6/2015

Budget Issue:

Expansion of Office of Law Enforcement Support

Program:

Secretary for Health and Human Services

Finding or Recommendation:

Modify Governor's April request for $2.6 million to increase OLES oversight of DSH and DDS law enforcement by (1) approving funding for the proposed attorney positions and (2) redirecting a portion of the remaining funding to OIG. The attorneys will help ensure more successful employee misconduct investigations, while the OIG will provide greater independent oversight than OLES.

Further Detail

Background

Law Enforcement Investigations. The Department of State Hospitals (DSH) and Department of Developmental Services (DDS) each maintain facility-specific law enforcement and incident investigation units, with each unit referred to as the Office of Protective Services (OPS). These units provide overall security for the departments’ facilities and investigate incidents (such as acts of violence). The units employ officers who respond to incidents, as well as investigators who may follow up on those incidents to assess the response and ensure the appropriateness of policies, procedures, and staff action.

Recent Concerns Raised With OPS. In recent years, various concerns have been raised about the ability of the OPS within DDS and the OPS within DSH to effectively carry out their responsibilities. For example, in a July 2013 report, the California State Auditor concluded that poor leadership, poor-quality investigations, outdated policies, and staffing problems at the OPS within DDS put the safety of residents in facilities at risk. In addition, the California Health and Human Services Agency (CHHS) recently conducted a review of OPS within DSH and found similar problems, including an inability to recruit and retain qualified staff; inconsistent and outdated policies and procedures; and a lack of independent oversight, review, and analysis of investigations.

Office of Law Enforcement Support (OLES). To address some of the above concerns, the Legislature approved $787,000 and six positions to establish OLES within CHHS as part of the 2014-15 budget. Specifically, the OLES is intended to improve and provide oversight of various law enforcement activities in DSH and DDS. Currently, the office consists of the following three units:

Training and Policy Development Unit. This unit is responsible for developing and maintaining a formal training plan and oversight of policy development.

Serious Misconduct Review Team. This unit is responsible for reviewing all criminal investigations related to abuse, neglect, or mistreatment. It is also responsible for developing use of force policies and conducting oversight of use of force in DSH and DDS.

In approving the above resources, the Legislature also adopted budget trailer legislation requiring CHHS to provide a report that outlines the problems facing the OPS within DDS and the OPS within DSH and makes recommendations for addressing these problems. In particular, the Legislature required CHHS to review and evaluate best practices and strategies, including providing independent oversight. The CHHS provided the Legislature with the required report in March 2015.

Governor’s Proposal

In order to address the deficiencies identified in the recent CHHS report, the Governor requests in an April Finance Letter additional resources to establish a Professional Standards Section within OLES. Specifically, the Governor proposes $2 million from the General Fund ($1.8 million ongoing), $600,000 in reimbursements, and 15 permanent positions for OLES in 2015-16. The requested positions include a Supervising Special Investigator II to oversee the Professional Standards Section and staff to support the following:

Vertical Advocate Unit. This unit, consisting of four Attorney III positions, would be responsible for ensuring that investigations into employee misconduct are sufficient to ensure successful prosecution.

Special Investigations Unit. This unit, consisting of four Investigator I positions, would monitor and assist investigations into serious employee misconduct, such as incidents involving death or sexual assault. The unit would also conduct investigations under certain circumstances, such as those involving misconduct of law enforcement personnel.

Investigations Analysis Unit. This unit, consisting of four Investigator I positions, would review certain administrative investigations, such as those that could result in the termination of an employee. It would also review cases to identify trends and ensure proper retraining, as necessary.

Investigation Support Unit. This unit, consisting of one Associate Governmental Program Analyst and one Office Technician, would provide clerical and incident tracking support to the Special Investigations Unit.

Interagency Contract. The proposal includes $600,000 in one-time reimbursement authority that would allow OLES to contract with the California Highway Patrol (CHP) and the Office of the Inspector General (OIG) for assistance in developing policies, procedures, and training for investigators.

Under the Governor’s proposal, the existing Serious Misconduct Review Team would be moved into the Professional Standards Section.

LAO Comments

Additional Oversight of OPS Within DSH and DDS Needed. In view of the existing problems related to law enforcement investigations within DSH and DDS, additional oversight of OPS operations is needed. Such oversight would also provide an opportunity for the Legislature to hold the two departments accountable for addressing the problems. Thus, we find that the Governor’s request is a step in the right direction.

Proposed Structure Lacks Independence Necessary for Effective Oversight. However, under the administration’s proposal, the new OLES Professional Standards Section would be under the CHHS, as are both DSH and DDS. As such, OLES would not have complete independence in carrying out the responsibilities of the new section. For example, OLES may investigate incidents and find that CHHS was in some way responsible for the incident. However, because OLES falls under CHHS, there may be an incentive to not report such problems publicly. Thus, the lack of independence from CHHS would limit the effectiveness of the oversight provided by OLES.

Alternative Models Available to Ensure Independent Oversight. We note that there are alternatives models to ensure independence for the entity providing departmental oversight. For example, the state currently has an OIG that oversees the California Department of Corrections and Rehabilitation (CDCR). The mission of the OIG is to safeguard the integrity of the state’s correctional system by monitoring CDCR to uncover criminal conduct, administrative wrongdoing, poor management practices, waste, fraud, and other abuses by staff or management. The OIG provides analysis and policy recommendations to the Governor, Legislature, correctional administrators, and the public based upon its findings in these types of inquiries. The OIG has generally proven effective in monitoring the operations of CDCR and has alerted the Legislature and the public to a number of issues and concerns with CDCR’s operations, including its treatment of inmates in state prisons.

LAO Recommendations

Approve Vertical Advocate Positions. Given the need to ensure that employee misconduct investigations result in successful prosecution, we recommend the Legislature approve the requested $600,000 to support four Attorney III positions in the Vertical Advocate Unit. These positions would help to ensure that acts of misconduct are sufficiently investigated, potentially increase the rate of successful prosecutions, potentially reduce costs associated with settlements, and help to ensure that employees who committed acts of misconduct no longer pose a risk to DSH patients or DDS clients. Given that these positions do not determine which incidents require investigation or reporting, or provide recommendations for changes to policies and procedures, we do not foresee a conflict of interest in having these positions under CHHS.

Redirect Proposed Staffing Resources to OIG to Provide Independent Oversight. In view of our concerns about independent oversight, however, we recommend redirecting the resources proposed for the Special Investigations Unit, the Investigations Analysis Unit, the Investigations Support Unit, and the proposed Supervising Special Investigator II position to the state’s existing OIG. We further recommend that the Legislature direct OIG to use these resources to establish a division to provide oversight of DSH and DDS facilities, similar to the oversight functions proposed for these units. This new division within OIG would have authority to conduct a formal review of complaints, monitor possible wrongdoing against patients and consumers, oversee investigations conducted by OPS, and work with the Vertical Advocate Unit within OLES and local law enforcement to prosecute misconduct. Under our proposal, similar to CDCR investigations, the OIG would be responsible for submitting biannual reports to the Governor, the Legislature, and the public to convey its findings, as well as a status report specifically on abuse and the handling of abuse cases in the DSH and DDS facilities.

Reject Proposed Reimbursement Authority. Given that OIG would already have the experience necessary for carrying out the above responsibilities, the funding for the proposed contract with CHP and OIG to assist in developing policies, procedures, and training for investigators would not be necessary. Accordingly, we also recommend rejecting the $600,000 in proposed reimbursement authority for OLES.